BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10/01/2011
CORAM
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
Civil Revision Petition NPD(MD) No. 344 of 2004
1. Tara
2. P. Surendramohan
3. Jeyaraj
4. Indira ... Petitioners
Vs
1. Government of Tamil Nadu
rep. By the District Collector
Panagal Building
Thanjavur.
2. The Director of Health
District Government Hospital
Dr. Moorthy Road
Kumbakonam.
3. Accountant General
Chennai.
4. Rajasekaran. ... Respondents
Petition filed under Section 115 of the Code of Civil Procedure against
the fair and decreetal order passed by the Principal Sub-Court, Kumbakonam in
I.A.No.173 of 2003 in unfiled A.S.No.---/2004 dated 18/2/2004.
!For petitioner ... Ms.V.K.Vijaya
^For respondents ... Mr.D.Sasikumar, GA
for R.R.1 and 2.
Mr.P.Gunasekaran
for R.3.
Mr.A.Saravanan for R.4
- - - - -
:ORDER
The petitioners/respondents 3 to 6 have filed the present Civil Revision
Petition as against the order dated 18/2/2004 in I.A.No.173 of 2003 in an
unnumbered Appeal No.Nil/2004 passed by the learned Principal Sub-Judge,
Kumbakonam.
2. The respondents 1 and 2/petitioners/appellants have filed I.A.No.173
of 2003 on the file of the learned Principal Sub-Judge, Kumbakonam under Section
5 of the Limitation Act, 1963 praying to condone the delay of 765 days in
preferring the appeal filed against the judgment and decree dated 31/7/2001 in
O.S.No.170 of 1995 on the file of the First Additional District Munsif Court,
Kumbakonam.
3. The learned Sub-Judge, Kumbakonam while passing orders in I.A.No.173
of 2003 in an unnumbered Appeal No.Nil/2004 on 18/2/2004 as among other things
observed that “the issues pertaining to Pension Rules will have to be determined
only if an appeal is examined and a decision taken thereon and resultantly
allowed I.A.No.173 of 2003 by directing the respondents 1 and 2/petitioners to
pay a sum of Rs.1,000/- to the petitioners herein/2 to 6 respondents within a
period of two weeks i.e., before 6/3/2004 failing which it directed the petition
to be dismissed and ordered for posting of the matter on 7/3/2004.
4. Being dissatisfied with the order passed by the learned Principal Sub-
Judge, Kumbakonam in an unnumbered Appeal No.Nil/2004, the revision petitioners
as aggrieved persons have preferred the present Civil Revision Petition before
this Court.
5. According to the learned counsel for the petitioners, the learned
Principal Sub-Judge, Kumbakonam, while allowing I.A.No.173 of 2003 on 18/2/2004
by passing a conditional order has not appreciated of the fact that the delay of
768 days in question has occurred due to extraordinary reason which cannot be
condoned for the reasons assigned in the affidavit. Further, there is no cause
of action for the respondents 1 and 2 to prefer an appeal as against the
judgment and decree passed by the trial Court in O.S.No.170 of 1995 dated
31/7/2008.
6. Also, it is the contention of the learned counsel appearing for the
petitioners that the learned Sub-Judge has allowed I.A.No.173 of 2003 by
erroneously taking into consideration the pension payable and in any event,
imposing of costs of Rs.1,000/- by the learned Sub-Judge, is an illegal one
besides the same being opposed to law.
7. In the affidavit in I.A.No.173 of 2003 filed before the learned
Principal Sub-Judge, Kumbakonam, the second revision petitioner as among other
things mentioned that there is a delay of 768 days in preferring the appeal and
the said delay has been caused due to administrative process and not on their
negligence. Also, it is mentioned that the husband of the deceased person is
only eligible to derive the benefit. Moreover, as per Section 28 of the
Administrative Tribunal Act, the proper forum is only the State Administrative
Tribunal.
8. The Revision petitioners in I.A.No.173 of 2003 at paragraph 4 have
stated that the opinion from the Special Government Pleader, Chennai is that the
Civil Court has no jurisdiction to entertain the case.
9. In the counter filed by the third respondent/first respondent, it is
among other things mentioned that the fourth respondent/the husband of the
deceased is entitled to the final balances in G.P.F account of the subscriber
and that the petitioners in execution petition are not entitled to receive the
same, etc.
10. In the counter filed by the third revision petitioner/fifth
respondent and adopted by the revision petitioner/second revision petitioner and
fourth revision petitioner, it is stated that only to escape from making payment
in the execution petition, the present petition has been filed and absolutely
there is no reason or justification to stay the execution petition and also to
show their bonafides, the first and second respondents/petitioners may be
directed to deposit in the Court as the condition precedent for condonation of
delay. On going through the order passed by the learned Principal Sub-Judge,
Kumbakonam in an unnumbered Appeal No.Nil/2004, it is clear that the said Court
has exercised its judicial discretion in directing the R1,R2/petitioners to pay
a sum of Rs.1,000/- as costs in allowing I.A.No.173 of 2003 to the respondents
2 to 6 therein within a period of two weeks before 6/3/2004.
11. The contention of the learned counsel for the revision petitioners is
that the respondents 1 and 2/petitioners in I.A.No.173/2003 has attributed the
reason for the delay of 768 days in preferring the appeal only due to some
administrative process and indeed, the respondents 1 and 2/petitioners have not
expatiated the same in a quantitative or in a qualitative fashion. To put it
differently, the averment in I.A.No.173 of 2003 that “the said delay was caused
due to some administrative process and not our negligence is a cryptic one
bereft of any detail in this regard”. It would have been prudent on the part
of R.1,2/petitioners to have elaborated the reasons for the delay in the counter
to I.A.No.173 of 2003 in paragraph 5. However, the absence of elaboration in
this regard is not fatal to I.A.No.173 of 2003.
12. It is to be noted that when a Court of law while dealing with Section
5 application will have to adopt a pragmatic common sense approach, however, it
shall not adopt a pedantic approach. By and large a litigant/party does not
stand to benefit by preferring an appeal belatedly. The maximum thing that can
happen, if an application for condonation of delay is allowed by a Court of law
is that the concerned party will have an opportunity to take part in the main
proceeding and is because being decided on merits and of course, after providing
due opportunities to either side. Also that, when substantial justice and
technical considerations are fitted against each other, then deliverance of
substantial justice will have to be preferred rather than the other course. It
is to be born in mind that judiciary is respected not on account of its power to
legalise injustice on technical grounds but it is capable of removing so and is
expected to do so. As far as the present case is concerned, the learned
Principal Sub-Judge, Kumbakonam, while passing the conditional order in
I.A.No.173 of 2003 in an unnumbered Appeal No.Nil/2004 dated 18/2/2004 has
exercised its discretion and when going through the said order, this Court comes
to an inevitable conclusion that the said order does not suffer from any
material irregularity or patent illegality warranting any interference in the
hands of this Court sitting in revision. At this stage, it is pertinent for
this Court to make a significant mention that in the order in I.A.No.173 of 2003
dated 18/2/2004, the learned Principal Sub-Judge, Kumbakonam has also observed
that the legal issues involved in the subject matter of the case can be
determined only if the appeal is taken up for consideration etc. Therefore,
looking at from any angle, the order of the learned Principal Sub-Judge,
Kumakonam in I.A.No.173 of 2003 in an unnumbered Appeal No.Nil/2004 dated
18/2/2004 is found to be a valid and legal one. Resultantly, the Civil Revision
Petition is devoid of merits.
13. In the result, the Civil Revision is dismissed, leaving the parties
to bear their own costs. Consequently, the order passed in an unnumbered
Appeal No.Nil/2004 passed by the learned Principal Sub-Judge, Kumbakonam dated
18/2/2004 is affirmed by this Court for the reasons assigned in this revision.
Liberty is given to the parties to raise all factual and legal pleas before the
learned Principal Sub-Judge, Kumbakonam at the time of final hearing of the main
Appeal. Consequently, the connected Miscellaneous Petition is closed.
mvs.
To
The Principal Sub-Court, Kumbakonam